March Mental Capacity Law Newsletters now out!

In the Health, Welfare and Deprivation of Liberty Newsletter: what we don’t know about the MCA and further observations on ‘using and weighing’;

In the Property and Affairs Newsletter: calibrating testamentary capacity to the nature of the estate and updates from the Office of the Public Guardian;

In the Practice and Procedure Newsletter: the draft Case Management Pilot, the s.49 Pilot and an update on the transparency pilot;

In the Capacity outside the COP Newsletter: further follow-up from Winterbourne View, the Mental Health Taskforce report’s ‘fusion’ recommendation, and immigration detention and the MCA;

In the Scotland Newsletter: the shortage of Mental Health Officers (again), total or complete incapacity in the context of homelessness, the Carers (Scotland) Act 2016 and an update on the consultation on the AWI.

You can find all of these, our past issues, our case summaries, and much more on our dedicated sub-site here. ‘One-pagers’ of the cases in these Newsletters of most relevance to social work professionals will also shortly appear on the SCIE website.

One Reply to “March Mental Capacity Law Newsletters now out!”

Hi, apologies if this isn’t the right place to post this, but I couldn’t see a better place …

It’s about mental capacity in theory, and in practice (executive). It comes up frequently on training courses and I wondered if anyone here had any views …

Imagine you have a young man with learning disability, in Supported Living, who wants to visit a night club with his mates. You sit him down on a Tuesday afternoon and talk to him about keeping safe, which bus to catch, what to do if he gets separated from his mates, how to avoid having his drink spiked etc. And he appears to understand all of that, so there is no evidence at present that he lacks capacity to decide on this.

Then on Saturday night it all goes pear shaped. The noise and clamour in the night club frightens him and he runs off into the night. His mates lose track of him because (as it turns out later) he’s forgotten his mobile phone. He is eventually returned to the Supported Living project a 5am by the police who found him wandering aimlessly along a dual carriageway. He said he lived round the corner, but was actually many miles from home and heading in the wrong direction.

A few days later he’s forgotten what happened. As far as he is concerned he had a great night on Saturday and wants to do it again this weekend. When you talk to him he is once again able to explain about night buses, keeping safe etc. But he has no recollection of what actually happened last Saturday. He believes the fact that he returned home safely is proof that he can look after himself.

On the face of it he has capacity (on Tuesday) to make the decision to go to the nightclub on his own. But the evidence from last Saturday would suggest that he would have difficulty putting his plans into action this Saturday. Can we therefore say that he now lacks capacity to make the decision, on the basis that what he is saying now does not match with the reality of what happened last Saturday?

— "The application seeks a declaration pursuant to section 15 (that it is lawful and in B's best interests for CANH to be withdrawn) and, secondly, an order pursuant to section 16 for such withdrawal and for B to receive palliative care only. If granted, it is anticipated that B will pass away. ... In […]

— "I concluded it would be appropriate to make a declaration (1) that NLH lacked capacity (a) to make decisions as to the provision of buccal swab samples, the testing of such samples and the profiling of his DNA and (b) to conduct these proceedings, and further (2) that it was lawful for the local […]

— "Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including: (i) The level of intelligence of the child. (ii) The emotional maturity of the child. (iii) Factors which might undermine their understanding such as […]

— "SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine: (a) Whether she has […]